“Expedited Removal” and Deportation Under U.S. Immigration Law

Expedited removal is a form of “summary” deportation. It allows the Department of Homeland Security (“DHS”) to deport non-U.S. citizens immediately and without a formal hearing.Under U.S. immigration law, people who can be deported by expedited removal are those who:

• Entered the U.S. without valid documents (such as a passport and/or visa);¹ or
• Obtained entry by actual or attempted fraud or misrepresentation.²

The majority of people deported by expedited removal are those caught entering the U.S. unlawfully.

But as the result of a recent White House Executive Order expanding expedited removal, U.S. Customs and Border Protection (CBP) can summarily deport anyone who:

• Is suspected of being in the U.S. unlawfully, and
• Cannot prove that he or she has been in the U.S. continuously for at least two years.³

People in expedited removal proceedings do not have the right to a hearing in front of an immigration judge. But they are still allowed to stay in the U.S. if:

• They are a U.S. citizen, a lawful permanent resident (“green card” holder), or a lawfully admitted refugee or asylee, or
• They have a credible fear of persecution or torture if returned to their home country.

To help you better understand expedited removal, our California immigration lawyers discuss, below:

• 1. When can the U.S. deport someone?
• 2. Who is subject to expedited removal?
• 3. Aren’t non-citizens protected by the U.S. Constitution?
• 4. How does “expedited removal” work?
• 5. What are the consequences of deportation by expedited removal?
• 6. Can I appeal an order of expedited removal?
• 7. What if I am in the U.S. lawfully?
• 8. What if I have been in the U.S. unlawfully for more than two years?
• 9. How can I prove residency in the U.S.?
• 10. How can I avoid expedited removal?
• 11. What are my rights and obligations if I am stopped by the police?
• 12. What can I do if ICE shows up at my home?
• 13. What if I want asylum or am afraid to go back to my country?
• 14. What if I am sick or pregnant when I am detained?
• 15. Can children be deported through expedited removal?
• 16. Can I leave the U.S. voluntarily if I am put in expedited removal proceedings?

1. When can the U.S. deport someone?

The U.S. has the right to remove (deport) non-U.S. citizens under certain circumstances. The most common are when a non-citizen has:

• Entered the U.S. without inspection or permission (unlawful entry);
• Obtained a green card or visa by fraud or misrepresentation,
• Been convicted of a deportable crime or an “inadmissible” crime; or
• Overstayed a valid U.S. visa (such as an F1 academic student visa).⁴

2. Who is subject to expedited removal?

Anyone who enters or attempts to enter the U.S. unlawfully may be subject to expedited removal if they have not been in the U.S. continuously for at least two years. Fur purposes of avoiding expedited removal, “continuously” means two years straight with no absence whatsoever.⁵

In the past, people were subject to expedited removal only if they were apprehended:

• Within 100 miles of a point of entry to the U.S. (such as the border), and
• Within 2 weeks of entering the U.S.

But the recent White House Executive Order referred has expanded expedited removal to cover aliens found anywhere in the U.S. if they cannot prove 2 years of continuous residence.

In all other cases, a non-citizen is entitled to a formal deportation hearing before being removed from the U.S.

3. Aren’t non-citizens protected by the U.S. Constitution?

U.S. citizens and people who entered the U.S. lawfully are entitled to the benefits of the U.S. justice system before they can be deported. They obtain this right from the Due Process Clauses of the 5th and 14th Amendments to the United States Constitution.

Thus an immigrant who is lawfully present has the following rights:

• A hearing before an immigration judge,
• Representation by a lawyer (at the immigrant’s expense),
• To testify and call witnesses, and
• To appeal an adverse decision to the Board of Immigration Appeals (“BIA”).

But people subject to expedited removal do not have these rights.⁶ They are not even entitled to be represented by a lawyer.⁷.

4. How does “expedited removal” work?

Most people subject to expedited removal are apprehended by a Department of Homeland Security (DHS) officer at a U.S. entry checkpoint.

Others are apprehended by a U.S. Immigration and Customs Enforcement (ICE) officer when they are in the U.S.

The burden is on an immigrant to prove to a customs officer that he or she is lawfully present.

Anyone who can’t produce the necessary documentation is subject to mandatory detention (lock-up). The U.S. can then commence deportation proceedings in as little as 24 hours — even if that person is, in fact, here lawfully.

5. What are the consequences of deportation by expedited removal?

Someone who has been deported by expedited removal is barred from returning to the U.S. for at least 5 years (or longer, depending on the person’s immigration and criminal history).⁸

However, if the reason for the expedited removal was fraudulent entry documents or claiming falsely to be a U.S. citizen, the person is barred from the U.S. for life.⁹

For this reason, lying about one’s immigration status can have serious negative consequences.

People who are barred from the U.S. for any length of time can apply for permission to have the time period in which they are inadmissible waived. But the U.S. is not obligated to grant a waiver.

For more information, please see our article on I-212 waivers.

6. Can I appeal an order of expedited removal?

Expedited removal orders can not generally be appealed.

In cases of extreme unfairness — and if the alien is still in the country —  the alien may be able to file a petition for habeas corpus review. If the court agrees to hear the habeas petition, it will usually grant a temporary restraining order (TRO) to keep the alien from being deported before the habeas petition has been heard.

If an alien has already been wrongfully deported, their lawyer can submit a request to the CBP for review.¹⁰ If it is subsequently determined that the person should not have been deported, the order of expedited removal will be vacated.

7. What if I am in the U.S. lawfully?

The following people may not be deported by expedited removal:

• U.S. citizens (who are not deportable at all),
• Lawful permanent residents (“green card” holders), and
• Lawfully admitted refugees or asylees.

If you are put into expedited removal and you fall into one of these categories, be sure to notify the immigration officer. He or she will then try to verify your claim using your fingerprints and government databases.

You may also be allowed to request documents from third parties (such as your family or lawyer).

An immigration officer who cannot verify your claim can refer your case to an immigration judge – though this is at the officer’s discretion.¹¹

If you are referred to an immigration judge, the judge will review the officer’s determination. The judge’s decision cannot be appealed.

Be aware, however, that if you are not a U.S. citizen, the government can still initiate formal removal proceedings against you if the department believes there are other grounds for deporting you.

8. What if I have been in the U.S. unlawfully for more than two years?

Expedited removal is not supposed to apply to undocumented immigrants who have been in the U.S. continuously for more than two years. Instead, if the government wishes to deport them, they should be served with a Notice to Appear in a regular removal proceeding.

However, since expanded expedited removal is new, the policy has not yet been tested.

The new law may also, at some point, be challenged in court. It may turn out to be unconstitutional or unconstitutional as enforced.

Undocumented aliens who have been present in the U.S. for more than two years may want to speak to a lawyer to create a personalized plan for avoiding deportation.

9. How can I prove residency in the U.S.?

An alien who is placed into expedited removal proceedings is supposed to be given a reasonable opportunity to establish that he or she was lawfully admitted to the U.S.

The immigration officer can consider government-issued identification along with documents such as receipts, phone records, and utility bills.

These documents may be in the possession of the alien. If an alien chooses not to carry such documentation on his or her person, such documents should be kept somewhere they are easily accessible by a family member, friend or lawyer.

The examining immigration officer should consider all such evidence and make further inquiry, if necessary.

But ultimately, the burden is on the alien to satisfy the examining officer that the alien is here lawfully. And even if lawful admission is established, the officer may examine the case to determine if the alien is deportable or inadmissible on some other basis.

10. How can I avoid expedited removal?

People who are in the U.S. lawfully should carry identity documents (or a copy of such documents).

Those who are here unlawfully may want to discuss their situation with an experienced immigration lawyer.

Note that in Los Angeles, California the Los Angeles Police Department (LAPD) does not ask about immigration status when interacting with people in the community. Law enforcement agencies in other so-called “sanctuary cities” usually have similar policies.

All undocumented immigrants should, however, have an emergency plan in case they are placed into removal proceedings. It should include how children and pets should be cared for and who family members or friends should notify

11. What are my rights and obligations if I am stopped by the police?

Immigrants have the right to remain silent just like U.S. citizens. Depending on where you live and the situation, however, you may be required to identify yourself to a law enforcement officer.

In California, you are not obligated to show a police officer identification unless:

• You were driving and got pulled over, or
• You were placed under arrest.

Otherwise, if an officer arrests you for refusing to show ID, it is a wrongful arrest and can be challenged.

But even a wrongful arrest can lead to negative immigration consequences. Thus we recommended that if you are arrested you exercise your right to remain silent and contact a lawyer immediately.

12. What can I do if ICE shows up at my home?

People do not need to let an ICE agent into their home unless the agent has a valid warrant signed by a federal judge. It is perfectly acceptable to ask the ICE officer(s) to slip the warrant under the door so you can review it.

If the warrant appears valid, you must cooperate as set forth in the warrant. If you have a valid U.S. passport, green card or visa, you can show it to the officer. Otherwise you should exercise your right to remain silent and say you want to speak to your lawyer.

13. What if I want asylum or am afraid to go back to my country?

An alien who is afraid to go home can ask for asylum in the U.S. or a “credible fear” review.

The immigration officer will usually then refer the matter to an asylum officer. The asylum officer will conduct an interview with the alien to see if the alien qualifies for relief under:

• U.S. asylum law,
• The U.N. Convention Against Torture (CAT protection),
• The Violence Against Women Act (VAWA), or
• Another program.¹²

The standard for the asylum officer’s review is as follows:

• If the alien has no prior history of removal from the U.S.: The alien must establish a “credible fear” of torture or persecution – that is, that it is more likely than not that he or she would face one of these if returned home.
• If the alien has previously been under an order of removal from the U.S.: The alien must establish a “reasonable fear” of persecution or torture. This is a higher standard than “credible fear.”

If the asylum officer finds that an alien has a credible or reasonable fear of persecution or torture, the alien will receive an asylum hearing before an immigration judge. The hearing will usually take place within 10 days. In the meantime, the alien will be kept in detention.

If the asylum officer decides that an alien has does not have a credible or reasonable fear of returning home, the alien can be deported. This decision is reviewable by an immigration judge.

14. What if I am sick or pregnant when I am detained?

Immigration officers have the right to place aliens in expedited removal proceedings on “parole” on a case-by-case basis. Parole is will usually granted if:

• The alien does not represent a security risk,
• The alien is unlikely to abscond (make off), and
  • There are “urgent humanitarian reasons” (such as pregnancy or a serious medical condition), or
  • There would be a “significant public benefit” – for instance, the alien’s testimony is needed in court.¹³

As a condition of parole, the alien may be required to give reasonable assurances that he or she will appear at all hearings and/or depart the United States when required to do so.

15. Can children be deported through expedited removal?

Children can be placed into expedited removal proceedings (normally with a parent or other relative). However, they can usually be released:

• To a close relative (brother, sister, aunt, uncle, or grandparent) who is not in detention and is willing to sponsor the minor, or
• With an accompanying relative who is in detention.

If the minor has no suitable relatives but was accompanied by another adult, the release is determined on a case-by-case basis.

Unaccompanied minors will usually be referred to the Office of Refugee Resettlement (“ORR”).

The ORR will try to find a relative to release the minor to, either in the U.S. or the minor’s home country. Failing that, the minor will be placed in a foster home.

16. Can I leave the U.S. voluntarily if I am put in expedited removal proceedings?

Immigration officers have the discretion to let immigrants return home by voluntary departure rather than having an order of removal on their record.

There will still be a record of the encounter, which could impact future applications for admission to the U.S.¹⁴

But voluntary departure does not carry the same consequences of a removal order. Most importantly, it does not carry a mandatory period of at least 5 years before returning.

Concerned about expedited removal in Los Angeles? Call us for help…

If you or someone you know needs an experienced criminal or immigration lawyer in Los Angeles or another California community, we invite you to contact us for a free consultation.

Our California “crimmigration” lawyers can help defend you in criminal or immigration cases or help you apply for permission to enter or remain in the U.S. lawfully.

To schedule your free consultation call or complete the form on this page and a caring California immigration attorney will call you at a convenient time.

We also have experienced Nevada immigration lawyers to serve your needs in Las Vegas, Reno and other Nevada communities.

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